delivered the opinion of the court:
Defendant, Donald F. Underhill, was convicted of burglary in the circuit court of Kane County and sentenced to the penitentiary for a term of not less than 2 nor more than 12 years. He appeals from this conviction, contending that his confession was obtained by constitutionally impermissible means, that he was not proved guilty beyond a reasonable doubt, and that his counsel at trial was incompetent. He further contends that certain evidence and exhibits were improperly admitted, that certain instructions were erroneously given, and that certain remarks in the State’s closing argument were inflammatory and constituted reversible error.
The record discloses that a safe and its contents were taken some time between the evening of December 11 and about 9:30 A.M. December 12 from the locked premises of the Manor Coffee Shop in Elgin, where defendant’s wife, Linda, was employed as a waitress. The three doors, windows and skylight of the shop bore no signs of forcible entry, and all keys to the premises were entrusted to persons other than defendant’s wife. The day following the burglary Linda Underhill worked only two hours of her normal shift and left claiming illness and did not return to work thereafter.
On January 11, 1966, Elgin police officers found the remnants of what was once a safe on the shoulder of Spaulding Road, east of Griffin Road, in Cook County. On Jаnuary 16, 1966, at about 7:00 P.M., defendant and his wife were picked up by Elgin police while driving a motor vehicle in the city of Elgin. They were taken to the police station, placed in separate cells, and booked for deceptive practices in connection with an investigation of some forgeries they were suspeсted of having committed. Defendant was also charged with driving without a license.
While incarcerated, defendant and his wife were separately questioned about the above burglary. On the morning of January 17, 1966, at about 9:30 or 10:30, defendant allegedly made an oral confession admitting his participation in the burglary, and his wife did likewise around 2 :оo that afternoon. Thereafter, when defendant was asked to sign a written statement, he requested permission to call his attorney, which was granted. Upon being unable to reach his attorney defendant did not sign any statement. A preliminary hearing was held on March 29, 1966, and on April 4, 1966, defendant and his wife were indicted for burglary.
On May 9, 1966, defendant аnd his co-defendant wife, represented by private counsel, moved to suppress their oral confessions on the basis of involuntariness, charging that they were induced by promises of leniency and threats of other prosecutions against her. At the hearing on that motion the promises of leniency or threats were contrоverted by the interrogating police officers who did admit, however, to having a discussion with defendant concerning the possibility of probation for his wife, wherein they indicated they would not oppose such probation. But the officers emphatically denied promising defendant leniency for his wife, with regard to a prosecutiоn for forgery, if he confessed to the burglary. Although defendant and his wife repudiated their confessions, the court denied their motion to suppress as to both confessions.
Defendant and his wife were tried jointly in a jury trial commencing May 10, 1966. The principal witnesses for the State were the police officers who testified that, among other things, defendant admitted burglarizing the coffee shop by use of a duplicate key obtained through his wife’s assistance, opening the safe taken therefrom in his basement with a crowbar and screwdrivers, and dumping the dismantled safe out on Spaulding Road. They further testified that defendant’s wife, outside defendant’s presence, admitted abetting the burglary by taking the back door key of the shop, giving it to her husband, and returning it after he made a duplicate thereof. The officers, at the trial, again denied making any promises of leniency regarding defendant’s wife, stating that they only told defendant, in response to an inquiry by him, that they would not oppose probation for her. The Statе then introduced into evidence the following six exhibits : (1) two keys, one of which the owner of the Manor Coffee Shop testified opened the back door to his shop at the date of the burglary, (2) the key taken from the person of the defendant at the time of his arrest which he allegedly admitted using to gain entrance to the shop and which, when tested subsequent to the burglary, fit the lock on the back door but did not open it, (3) five pieces of metal, which once constituted a safe, and which defendant allegedly identified as the safe he removed from the coffee shop, and (4) (5) and (6) a crowbar and two screwdrivers taken, at defendant’s direction, from his home and automobile, respectively, which he allegedly admitted were used to open the safe and which the prosecution’s expert witness from the crime laboratory indicated could have been the tools used to dismantle the safe, and that paint pigment found on the crowbar was the same as paint pigment оn the safe.
Defendant and his wife each took the stand in their own behalf and denied participating in the burglary, specifically repudiating their confessions, and introduced an alibi corroborated in part by defendant’s stepfather. During defendant’s direct testimony he admitted that he had twice before been convicted of burglary and had previously been arrested for assaulting his father-in-law.
The State’s Attorney, in his closing argument, suggested that the reason exhibit (2) did not open the back door of the coffee shop was that the locks were changed after the burglary, although there was no direct evidence introduced at trial of any change of locks. (In his direct examination of the owner of the coffee shop, the State’s Attorney sought to elicit information concerning a change in locks subsequent to the burglary, but defense counsel’s objection to this line of inquiry was sustained by the trial court.) Defense counsel objected, and the court instructed the jury to disregard any remark unsuрported by the evidence. The prosecution also argued that defendant’s previous convictions reflected on his credibility, and enumerated the two burglary convictions and referred to “* * * one other incident * * *” he did not recall at the time. Defendant’s objection to the “other incident” without specification was sustаined. Thereafter, defendants were found guilty of the crime charged, from which conviction he prosecutes this appeal.
In support of his contention that the above confessions should have been suppressed, defendant argues that they were obtained through coercion and inducement, as evidenced in рart by the failure to bring him promptly before a judicial officer in accordance with section 109 — -i of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, chap. 38, par. 109 — 1), and that he and his wife were interrogated without the benefit of the procedural safeguards to their constitutional rights set forth in Miranda v. Arizona,
The trial court determined thеse • questions by a preliminary hearing and found that the confessions were voluntary. On review such determination will not be disturbed unless manifestly against the weight of the evidence, or unless the court has committed an abuse of discretion. (People v. Ackerson,
The evidence at this hearing was contradictory and while the rеcord does indicate that the defendants were not promptly presented before a magistrate as required by section 109 — 1 of the Code of Criminal Procedure, such delay did not of itself vitiate the confessions but was merely a factor to be considered on the question of the voluntariness of the confessions. (People v. Harper,
Defendant’s argument with respect to the admissibility of the State’s exhibits is a corollary to his initial contention that his confession was inadmissible. Since we have decided that issue in favor of the confession’s admissibility, it follows that the admission of exhibits (2) through (6) was proper since the confession establishes their relevance to this prosecution. It further follows that exhibit (1) was properly admitted for the sake of comparison with exhibit (2) to establish if the latter exhibit could have opened a door to the shop at the date of the burglary. Its admission was especially necessary since the record indicates that perhaps the locks on the shop had been changed subsequent to the burglary and the trial court had improperly precluded the State from eliciting this information.
Defendant next maintains that “It is the law of this State that the voluntary confession of one person madе after the commission of the crime cannot be admitted against a codefendant unless made in the presence of the codefendant and assented to by him” (People v. Hodson,
Defense counsel was apprised of the nature of the wife’s confession at the preliminary hearing on the motion to suppress. At no time, including his post-trial motion, did he make a request for a separate trial or object to the admission of the wife’s confession. Nor did he ask for or submit a cautionary instruction concerning the proper purpose of that confession. Therefore, defendant may not under the circumstances challenge the admissibility of the confession without a limiting instruction since, as held in People v. Bartz,
Defendant also maintains that certain remarks of the prosecution in its final argument were inflammatory, that certain instructions were improper, and that both these remarks and instructions constitute reversible error. While, in his brief, defendant enumerates several allegedly improper statements, we need consider only those remarks оbjected to at trial since statements not objected to are waived. (People v. Donald,
We next consider dеfendant’s interrelated contentions that the State failed to prove, the corpus delicti of the crime of burglary, since his confession is not competent evidence of same, and that he was not proved guilty beyond a reasonable doubt since his conviction was based solely on his and his wife’s uncorroborated extra-judicial confessions.
It was incumbent upon the State to show an unauthorized entry into the Manor Coffee Shop with the intent to commit a felony or theft therein. (See Ill. Rev. Stat. 1965, chap. 38, par. 19 — 1.) It is clear that the unauthorized entry may be proved by circumstantial evidence, and that the accompanying intent to commit an offense may be inferred from the fact that a larceny was actually committed. (People v. Franceschini,
Finally, defendant complains that his counsel at trial was incompetent, thereby denying him his rights to counsel and due process of law guaranteed under the Federal and State constitutions. He particularly charges that the following series of omissions by trial counsel evidence an incompetent representation: the failure to suppress the confession of defendant’s wife in that it was made outside defendant’s presence, the failure to object to the testimony of his wife’s confession and move to strike it, the failure to ask for a. separate trial because of his wife’s confession, the failure • to tender a cautionаry instruction to the jury and the failure to object to certain remarks of the prosecution in its final argument. However, in this case the defendant is represented by counsel of his own choice and “the court has held, almost without exception, that the failure of such counsel to exercise care and skill in the trial of the сase does not afford a basis for reversing a judgment of conviction.” (People v. Morris,
For the reasons stated above, the decision of the circuit court of Kane County is affirmed.
Judgment affirmed.